Norwest Bank v. Walker

933 So. 2d 222, 2006 WL 1752645
CourtLouisiana Court of Appeal
DecidedMay 24, 2006
Docket2005-CA-1068
StatusPublished
Cited by1 cases

This text of 933 So. 2d 222 (Norwest Bank v. Walker) is published on Counsel Stack Legal Research, covering Louisiana Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Norwest Bank v. Walker, 933 So. 2d 222, 2006 WL 1752645 (La. Ct. App. 2006).

Opinion

933 So.2d 222 (2006)

NORWEST BANK
v.
Junius C. WALKER, and Eddie M. Walker (a/k/a Eddie Mae Baker) and the United States of America, Internal Revenue Service.

No. 2005-CA-1068.

Court of Appeal of Louisiana, Fourth Circuit.

May 24, 2006.

Stacy C. Wheat, Jane Faia Mentz, Shapiro & Mentz, L.L.P., Metairie, LA, for Plaintiff/Appellee, Norwest Bank.

*223 John McKnight, Katy, TX, In Proper Person and for Defendant/Appellant, Gert Town Enterprise Economic Redevelopement, Inc.

(Court composed of Judge JAMES F. McKAY, III, Judge TERRI F. LOVE, Judge LEON A. CANNIZZARO, JR.)

CANNIZZARO, Judge.

First National Bank of Chicago ("First of Chicago") foreclosed on a mortgage affecting real estate owned in part by Gert Town Enterprises Economic Redevelopment, Inc. ("Gert Town"). An in rem judgment[1] in favor of First of Chicago was rendered in the foreclosure suit, and Gert Town is appealing that judgment.

STATEMENT OF FACTS AND PROCEDURAL HISTORY

Norwest Bank initially filed suit on a promissory note made by Junius C. Walker and Eddie M. Walker, also known as Eddie Mae Baker, that was originally payable to New Orleans Federal Savings and Loan Association but was subsequently transferred to Norwest. Payments on the note were in arrears, and Norwest sued to enforce a mortgage that secured the payment of the note. The mortgage covered property in New Orleans located at 3413-15 Audubon Court, 3409-11 Audubon Court, and XXXX-XX-XX½ Bloomingdale Court.

Because the whereabouts of Mr. and Mrs. Walker were unknown, an attorney was appointed by the trial court judge to represent them in the suit by Norwest. After the suit was filed by Norwest, First of Chicago was substituted as the plaintiff in the suit, and the United States Internal Revenue Service was added as a defendant. First of Chicago was substituted as the plaintiff, because it had acquired the note securing the mortgage. The Internal Revenue Service was added as a defendant, because it had filed tax liens against the mortgaged property. A consent judgment, however, was subsequently rendered that provided for the discharge of the tax liens against the mortgaged property, so that it could be sold after foreclosure free of the liens.

An in rem judgment recognizing the mortgage on the mortgaged property was granted in favor of First of Chicago and against Mr. and Mrs. Walker. Because the judgment was in rem, it affected only the mortgaged property and not Mr. and Mrs. Walker personally, but First of Chicago reserved its rights to sue them personally.

The mortgaged property was seized by the Orleans Parish sheriff and sold at public auction. First of Chicago was the highest bidder at the auction, and the mortgaged property was transferred to First of Chicago by a sheriff's deed.

After the mortgaged property was purchased by First of Chicago, First of Chicago moved to rescind the sale, because at the time of the sale, Gert Town and others owned an interest in the mortgaged property and had not been made parties to the foreclosure proceeding. The trial court granted the motion to rescind the sale and also ordered that all mortgages and other encumbrances that had been inscribed against the mortgaged property at the time of the sale to First of Chicago be reinstated and reinscribed in the public records.

*224 After the original sale to First of Chicago was rescinded, First of Chicago filed a supplemental and amending petition for the enforcement of the mortgage. Tarnisia Eyette Walker and Gert Town were added as additional defendants in the proceeding, and the unopened succession of Mr. Walker[2], who was deceased, was substituted for Mr. Walker as a defendant. The supplemental and amending petition alleged that Mrs. Walker was deceased and that a judgment of possession in her succession had been rendered placing Tarnisia Walker in possession of Mrs. Walker's undivided one-half community interest in the mortgaged property. Additionally, the supplemental and amending petition alleged that prior to his death, Mr. Walker donated to Gert Town his undivided one-half interest in the mortgaged property.

Gert Town answered the supplemental and amending petition and denied all of its allegations except the allegations pertaining to the identity of Mr. and Mrs. Walker and to the donation of Mr. Walker's interest in the mortgaged property to Gert Town. Because the whereabouts of Tarnisia Walker were unknown, an attorney was appointed by the trial court to represent her in the foreclosure proceeding.

First of Chicago then filed a motion for summary judgment. In connection with the motion for summary judgment, First of Chicago presented an affidavit to evidence the amount of the debt on the note that was secured by the mortgage as well as evidence of the mortgage itself, which contained a confession of judgment[3] by the mortgagors. A certificate of advertisement in the Times Picayune newspaper was submitted to the trial court as evidence that a search for the note, which had been lost, had been conducted.

A judgment was entered on the motion for summary judgment. An in rem judgment, which recognized the mortgage by Mr. and Mrs. Walker, was rendered in favor of First of Chicago and against the unopened succession of Mr. Walker, Tarnisia Walker, and Gert Town in the amount due on the note secured by the mortgage plus interest, reasonable attorneys' fees, and all other amounts permitted by the terms of the mortgage. First of Chicago's rights to sue any debtors on the note were preserved, and the judgment affected the mortgaged properties only. Gert Town is now appealing the judgment.

DISCUSSION

Standard of Review

Appellate courts review the granting of summary judgment de novo under the same criteria governing the trial court's consideration of whether summary judgment is appropriate. Reynolds v. Select Props., Ltd., 93-1480 (La.4/11/94), 634 So.2d 1180, 1183. See also Indep. Fire Ins. Co. v. Sunbeam Corp., 99-2181, 99-2257 (La.2/29/00), 755 So.2d 226, 231.

A summary judgment shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to a material fact and that the mover is entitled to judgment as a matter of law. La. C.C.P. art. 966(B). If the court finds that *225 a genuine issue of material fact exists, then summary judgment must be rejected. Oakley v. Thebault, 96-0937 (La.App. 4 Cir. 11/13/96), 684 So.2d 488, 490. The burden of proof does not shift to the party opposing the summary judgment until the moving party first presents a prima facie case that no genuine issues of material fact exist. Id. At that point, if the party opposing the motion "fails to produce factual support sufficient to establish that he will be able to satisfy his evidentiary burden of proof at trial, there is no genuine issue of material fact." La. C.C.P. art. 966(C)(2). Summary judgment should then be granted.

Assignments of Error

Assignment of Error No. 1: The trial court committed error in granting the in rem summary judgment in favor of First of Chicago in the absence of an original promissory note and in the absence of a certified copy of a notarial act of transfer of the note, the mortgage securing the note, and the assignment of leases and rents.

Foreclosures on immovable property in Louisiana can be brought by an ordinary proceeding or by an executory proceeding. See Hibernia Bank & Trust Co.

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